THE COURTS
[ 234 PA. CODE CH. 2 ]
Order Amending Rule 205 and Revising the Comment to Rule 209 of the Rules of Criminal Procedure; No. 492 Criminal Procedural Rules Doc.
[47 Pa.B. 4680]
[Saturday, August 12, 2017]
Order Per Curiam
And Now, this 31st day of July, 2017, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 46 Pa.B. 4951 (August 13, 2016), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the amendment to Pennsylvania Rule of Criminal Procedure 205 and the revision to the Comment to Pennsylvania Rule of Criminal Procedure 209 are adopted, in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective October 1, 2017.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 2. INVESTIGATIONS
PART A. Search Warrant Rule 205. Contents of Search Warrant.
(A) Each search warrant shall be signed by the issuing authority and shall:
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(8) when applicable, certify on the face of the warrant that for good cause shown the affidavit(s) is sealed pursuant to Rule 211 and state the length of time the affidavit(s) will be sealed.
(B) A warrant under paragraph (A) may authorize the seizure of electronic storage media or of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in (A)(4)(a) refers to the seizure of the media or information, and not to any later off-site copying or review.
Comment Paragraphs [(2) and (3)] (A)(2) and (A)(3) are intended to proscribe general or exploratory searches by requiring that searches be directed only towards the specific items, persons, or places set forth in the warrant. Such warrants should, however, be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description may suffice. See Commonwealth v. Matthews, [446 Pa. 65, 69—74,] 285 A.2d 510, 513-14 (Pa. 1971).
Paragraph [(4)] (A)(4) is included pursuant to the Court's supervisory powers over judicial procedure to supplement Commonwealth v. McCants, [450 Pa. 245,] 299 A.2d 283 (Pa. 1973), holding that an unreasonable delay between the issuance and service of a search warrant jeopardizes its validity. Paragraph [(4)] (A)(4) sets an outer limit on reasonableness. A warrant could, in a particular case, grow stale in less than two days. If the issuing authority believes that only a particular period which is less than two days is reasonable, he or she must specify such period in the warrant.
Paragraph [(4)(b)] (A)(4)(b) provides for anticipatory search warrants. These types of warrants are defined in Commonwealth v. Glass, [562 Pa. 187,] 754 A.2d 655 (Pa. 2000), as ''a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.''
Paragraph [(5)] (A)(5) supplements the requirement of Rule [203(C)] 203(E) that special reasonable cause must be shown to justify a nighttime search. A warrant allowing a nighttime search may also be served in the daytime.
Paragraph [(6)] (A)(6) anticipates that the warrant will list the correct judicial officer to whom the warrant should be returned. There may be some instances in which the judicial officer who issues the warrant may not be the one to whom the warrant will be returned. For example, it is a common practice in many judicial districts to have an ''on-call'' magisterial district judge. This ''on-call'' judge would have the authority to issue search warrants anywhere in the judicial district but may not be assigned to the area in which the search warrant would be executed. There may be cases when the warrant is incorrectly returned to the judge who originally issued the warrant. In such cases, the issuing judge should forward the returned search warrant to the correct judicial officer. Thereafter, that judicial officer should administer the search warrant and supporting documents as provided for in these rules, including the Rule 210 requirement to file the search warrant and supporting documents with the clerk of courts.
Paragraph [(8)] (A)(8) implements the notice requirement in Rule 211(C). When the affidavit(s) is sealed pursuant to Rule 211, the justice or judge issuing the warrant must certify on the face of the warrant that there is good cause shown for sealing the affidavit(s) and must also state how long the affidavit will be sealed.
For purposes of this rule, the term ''electronically stored information'' includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained. This definition is intended to cover all current types of computer-based information and to encompass future changes and developments.
For purposes of this rule, the term ''seizure'' includes the copying of material or information that is subject to the search warrant. This includes the copying of electronically stored information for later analysis.
For the procedures for motions for return of property, see Rule 588.
Official Note: Rule 2005 adopted October 17, 1973, effective 60 days hence; amended November 9, 1984, effective January 2, 1985; amended September 3, 1993, effective January 1, 1994; renumbered Rule 205 and amended March 1, 2000, effective April 1, 2001; amended October 19, 2005, effective February 1, 2006; Comment revised October 22, 2013, effective January 1, 2014; amended July 31, 2017, effective October 1, 2017.
Committee Explanatory Reports:
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Final Report explaining the October 22, 2013 revisions to the Comment regarding the return of the search warrant published at 43 Pa.B. 6652 (November 9, 2013).
Final Report explaining the July 31, 2017 amendment regarding search warrants for electronically stored information published with the Court's Order at 47 Pa.B. 4681 (August 12, 2017).
Rule 209. Return with Inventory.
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Comment The inventory is required to ensure that all items seized are accounted for in the return to the issuing authority. It thus differs from the receipt required by Rule 208, which is for the personal records of those from whose possession or from whose premises property was taken. In some cases, however, the list in the receipt may be sufficiently detailed so as to also be sufficient for use in the inventory. The inventory need not be sworn to before the issuing authority; however, the officer is subject to statutory penalties for unsworn falsification.
The rule was amended in 2013 specifically to require that the executed warrant be returned to the issuing authority. This amendment reflects a procedure with a long-standing practice but one that had not been codified in the rules.
See Rule [205(6)] 205(A)(6) regarding the circumstances under which the issuing authority to whom the warrant is returned may differ from the one that issued the warrant.
As provided in Rule [205(4)] 205(A)(4), search warrants generally authorize execution within a period not to exceed two days. Paragraph (B) requires that an unexecuted warrant be returned to the issuing authority upon expiration of this period.
Unexecuted search warrants are not public records, see Rule 212(B), and therefore are not to be included in the criminal case file nor are they to be docketed.
For the obligation of the Commonwealth to disclose exculpatory evidence, see Rule 573 and its Comment.
Official Note: Rule 2009 adopted October 17, 1973, effective 60 days hence; amended April 26, 1979, effective July 1, 1979; amended September 3, 1993, effective January 1, 1994; renumbered Rule 209 and amended March 1, 2000, effective April 1, 2001; amended October 22, 2013, effective January 1, 2014; Comment revised July 31, 2017, effective October 1, 2017.
Committee Explanatory Reports:
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Final Report explaining the October 22, 2013 amendments related to the return of the search warrant published with the Court's Order at 43 Pa.B. 6652 (November 9, 2013).
Final Report explaining the July 31, 2017 Comment revisions correcting a cross-reference to Rule 205 published with the Court's Order at 47 Pa.B. 4681 (August 12, 2017).
FINAL REPORT1
Amendments to Pa.R.Crim.P. 205; Revisions to the Comment to Pa.R.Crim.P. 209
Search Warrants for Electronic Materials On July 31, 2017, effective October 1, 2017, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 205 (Contents of Search Warrant) to clarify that electronic storage data may be seized or copied for later analysis. The Court also revised the Comment to Rule 209 to correct a cross-reference to Rule 205.
The intention of the amendment is to eliminate any confusion that, when a search warrant is for the seizure of electronically stored information and that information must be extracted, reviewed or analyzed, these additional processes do not need to be performed within the period set for execution of the search warrant. This change is based on language that is contained currently in Federal Rule of Criminal Procedure 41(B). The Committee examined the history of Federal Rule 41 and the specific provision related to electronically stored data which reads:
(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.Federal Rule 41 (''the federal rule'') was amended in 2009 to add this provision regarding warrants for electronically stored information. Searches of electronic storage media are problematic because computers and external electronic storage devices contain an almost incomprehensible amount and variety of data. The use of computers in all stages of life and business has become ubiquitous. This is only further complicated by the storage of electronic data on networks and, with increasing frequency, ''cloud'' servers. Additionally, the information is stored as lines of code, often of little practical use without some type of program to convert into a usable form. As a result, it is often impossible to conduct a search on-site for evidence within the computer or server and necessitating analysis by specialists. The federal rule was amended to recognize the need for a two-step process: officers either may seize or may copy the entire storage medium and conduct a review of the storage medium later to determine what electronically stored information falls within the scope of the warrant.
The Committee recognized that Pennsylvania search warrant procedures differ from federal procedures. However, the Committee concluded that the same concerns that prompted the change to the federal rule are applicable to search warrant practice in Pennsylvania and that a similar solution would be beneficial in Pennsylvania. For that reason, the language being added to Rule 205 is similar to that in the federal rule.
The term ''electronically stored information'' is derived from Rule 34(a) of the Federal Rules of Civil Procedure, which states that it includes ''writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained.'' The Committee concluded that this description is an apt one and is intended to cover all current types of computer-based information and to encompass future changes and developments.
The federal rule contains references to the ''copying of electronically stored information'' in addition to its ''seizure.'' The Committee believes that the term ''seizure'' used in a search warrant context encompasses the copying of the information and that to retain this terminology would unduly emphasize this single aspect. Therefore, the term ''copying'' is not used but a statement has been added to the Comment to ensure that it is understood that this is included in the ''seizure'' of the information.
As in the federal rule, the Committee rejected adding a specific time period within which any subsequent off-site copying or review of the media or electronically stored information would take place. Given the vast divergence in the media being searched, there will be wide differences in the amount of time required for forensic analysis and review of information. The Committee concluded that if a time limit were set for these processes it would be highly arbitrary and result in frequent petitions for additional time.
One of the concerns raised during the development of the federal rule change was the ability of an aggrieved party to pursue the return of property associated with electronic media. In the note to the 2009 change to the federal rule, it was observed that Federal Rule 41(g), which provides for a motion for return of property, applies to electronic storage media. Pennsylvania Rule 588 provides a similar motion for return. However, the only cross-reference in Chapter 2 that refers to Rule 588 is in the Comment to Rule 211 (Sealing of Search Warrant Affidavits). Therefore, a cross-reference to Rule 588 has been added to the Rule 205 Comment to emphasize the availability of this remedy.
Finally, two technical corrections have been made to cross-references to Rule 205 that are contained in the Comment to Rule 209.
[Pa.B. Doc. No. 17-1335. Filed for public inspection August 11, 2017, 9:00 a.m.] _______
1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
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